Civic Freedom Monitor: El Salvador

Introduction

El Salvador’s first civil society organizations (CSOs) engaged in humanitarian aid work during the 1960s. However, the majority of CSOs in El Salvador formed and developed in the late 1980s and early 1990s, when the country endured a civil war and period of post-war reconstruction. During that time many CSOs continued the work initiated in previous decades, but with heightened urgency to provide assistance to individuals who were marginalized from the economic and social system. The 1980s and 1990s also witnessed the emergence of new CSOs dealing with social welfare issues. With the end of the Civil War and the peace accords in 1992, CSOs continued to develop both quantitatively and qualitatively.

Over time CSOs developed mechanisms for international cooperation and financing and created unions, alliances and networks with other organizations, which are called federations, boards, offices and partnerships. They interact effectively in the public arena by formulating proposals for public policies, laws, and even agreements with state agencies.

The legal framework for CSOs is regulated by Article 7 of the Constitution ("The people of El Salvador have the right to freely associate and assemble peacefully without arms for any lawful purpose. [...]”) and more recently by the Law for Not-for-Profit Associations and Foundations (LAFSL). The LAFSL was enacted in 1996 and its regulations implement a special legal regime for social organizations, defining their rights and responsibilities and also creating a government office as a sanctioning body.

The arrival of the FMLN government in 2009 opened channels for citizen participation, but CSOs in El Salvador failed to unify around a national agenda for the country's development, and there is still no policy in place to promote social organizations. In addition, despite the flaws in the government entity that oversees CSOs— primarily related to the bureaucratic procedures that it imposes— little has been done to improve or replace it. This has resulted in insufficient mechanisms for organized participation in decision-making. The draft Law of Citizen Participation in Public Management, which was proposed in September 2014 but is still not passed, however, aims to empower citizens through mechanisms for consultation and dialogue and could represent an opportunity for greater CSO participation in decision-making.

International and Regional Human Rights Agreements

International Covenant on Economic, Social, and Cultural Rights (ICESCR)

Yes

1979

Optional Protocol to ICESCR (OP-ICESCR)

No

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International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

Yes

1979

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

Yes

1981

Optional Protocol to the Convention on the Elimination of Discrimination Against Women

No

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Convention on the Rights of the Child (CRC)

Yes

1990

International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)

Yes

2003

Convention on the Rights of Persons with Disabilities (CRPD)

Yes

2007

Regional Treaties

Organization of American States (OAS)

Yes

1950

American Convention on Human Rights (ACHR)

Yes

1978

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights ("Protocol of San Salvador")

Yes

1995

* Category includes ratification, accession, or succession to the treaty

Constitutional Framework

El Salvador is a unitary state that follows the civil law tradition. The Constitution, as the supreme law of the land, regulates the rights and duties of all of the country’s inhabitants. It protects the rights to freedom of expression and thought, as well as the freedom of association.

Article 7 of the Constitution states that:

The inhabitants of El Salvador have the right to associate freely and to meet peacefully, without arms, for any lawful purpose. Nobody shall be obligated to belong to an association.

A person shall not be limited or impeded from the exercise of any licit activity because he does not belong to an association.

The existence of armed groups of a political, religious or guild character is prohibited.

According to Article 240(5) of the Constitution, municipalities may approve of the formation of community associations through the authority vested to them to enact local ordinances and regulations.

Secondary legislation regulates the scope of the rights articulated in the Constitution.

National Laws and Regulations Affecting Sector

Two systems govern the establishment and operations of CSOs in El Salvador. The first system is the 1996 national-level Law for Not-for-Profit Associations and Foundations [Ley de Asociaciones y Fundaciones sin Fines de Lucro] (LAFSFL), which regulates the establishment, operation, and dissolution of CSOs.

The second system governs at the local level and is regulated through the Municipal Code and municipal ordinances issued by each of the country’s 262 municipalities. The goal of the local-level regulation is to promote effective CSO engagement at the local level to address public policy priorities. According to Article 118 of Title IX of the Municipal Code, “Municipal governments are obligated to promote citizen participation, provide public information on municipal management, address matters that residents may request, and those that the Council considers convenient.”

Pending NGO Legislative / Regulatory Initiatives

Legal Analysis

Organizational Forms

The Law for Not-for-Profit Associations and Foundations (LAFSFL) addresses two categories of CSOs (Article 1), which may be domestic or foreign (Article 44). The first category of CSOs is the association, a private legal entity formed by two or more natural or legal persons for the ongoing pursuit of any legal not-for-profit activity (Articles 9 and 11). These entities are formally established by means of a public deed from the founding members and are governed by internal by-laws. Their members may be natural or legal persons, whether national or foreign, although the latter must reside in the country (Article 12). The statutes of the association establish the rights and obligations of members within the organization and conditions of membership (Article 14).

Under the LAFSFL, federations and confederations, which are made up of legal persons, are also recognized associations (Article 17). As of 2011, the Ministry of Interior reports 15 registered federations and confederations.

The second category of CSOs under the LAFSFL is the foundation, which is established by one or more natural or legal persons for the administration of capital intended for purposes of public service (Article 18). A foundation is a non-membership organization, which may be established by nationals or foreigners. An endowment and operating funds are required at the time of establishment (Article 22). The establishment of a foundation is formally recognized in a public instrument or will (Article 19). Foundations are governed by their internal by-laws (Article 23).

For both associations and foundations, legal personality is obtained by registering with the Ministry of Interior (Article 26). As of 2014, there are 2,531 registered associations and 705 registered foundations.

The Municipal Code (MC) provides two additional categories of CSOs at the local level: municipal associations and community associations. Municipal associations are attached to the municipalities that create them (MC, Article 12). Legal personality is conferred by the municipality in the articles of incorporation.

The community association is formed by local residents who come together to address their common needs (MC, Article 118). Community associations must have at least 25 members (MC, Article 120). A decision by a special general assembly is required for their establishment and the relevant municipal council confers legal personality on the association (MC, Article 119).

Churches do not fall under the application of the LAFSFL (LAFSFL, Article 10), but instead are governed by Title 30 of the Civil Code. Trade unions are regulated under the Labor Code. Neither churches nor trade unions will be examined in the remainder of this report.

Public Benefit Status

Subject to prior certification by the General Directorate of Internal Taxes under the Ministry of the Treasury, associations and foundations can be declared as public interest entities, and therefore be exempt from paying income taxes. This benefit, which virtually all CSOs request, is regulated by the LAFSFL (Articles 6 and 7) and the Income Tax Law (Article 6).The requirements for obtaining public benefit status are set out in the Income Tax Law (Article 7).CSOs established for the purposes of social assistance, the promotion of road construction, charity, education and instruction, and cultural, scientific, literary, artistic, political and sports activities, as well as trade associations and unions, are eligible to receive the certification, as long as their income and assets are used solely to fulfill the institution’s purpose and are not distributed among members (Income Tax Law, Article 6). In practice, however, the process of obtaining this status is lengthy and bureaucratic. Furthermore, a designation as a public interest entity does not exempt the CSO from complying with other formal obligations, such as the submission of reports and other documentation requested by the tax authority.

The authorization for public interest status is granted for one year and may be renewed automatically absent a notice of revocation from the tax authority. The public interest designation may be revoked at any time if the grounds on which it was granted cease to exist (LAFSFL, Article 7). Neither the LAFSFL nor the tax laws outline a specific procedure for revocation of eligibility and there are no known cases of revocation.

Barriers to Entry

Vague Grounds for Denial: Under the LAFSL, the Registry of Not-for-Profit Associations and Foundations (RAF) has the power to deny registration if a CSO’s objectives are contrary to “public order, morals, and good customs.” Such vague terminology invites the exercise of subjective governmental discretion and the RAF is able to impede or delay the establishment and registration of CSOs because those terms have never been clarified. The Constitutional Chamber of the Supreme Court of Justice has, however, ruled unconstitutional the RAF’s refusal to register an association that advocates for the rights of transvestite homosexuals on the grounds that its purposes were contrary to morals and good conduct.

RAF Exceeding its Authority: The RAF exceeds its authority when it processes CSO registration requests by conducting subjective assessments on all applications in coordination with the line ministry or other public entity responsible for the field of activities of the CSO in question. Moreover, the RAF empowers the ministry or public entity to raise objections to the CSO’s by-laws or other founding documents, and to insist that the CSO modify those documents. While the RAF will not compel changes to the substance of the by-laws, it does make recommendations on the form and style of the documents, which can be burdensome on applicants. The Registry may, for instance, demand further information if the aims set out in the CSO’s by-laws are too general or lack specificity and may require information relating to the origin, allocation, and use of funds for the projects to be implemented. The establishment of requirements beyond those provided in the law is arbitrary and creates a situation of legal uncertainty.

Ministry of Interior as Final Arbiter: In cases of outright refusal of registration, Article 51 of the LAFSFL provides the right to an administrative appeal. Within three business days of the notification of refusal, the applicant may file a petition for review to the Ministry of Interior, which must decide on the petition within fifteen working days. The Ministry’s decision is final.

Excessive Costs.There are a number of expenses associated with the registration of a CSO. First, the LAFSFL sets a fixed registration fee of approximately $35 (LAFSFL, Article 69). In addition, a CSO must pay for the following: a notary public who writes the CSO’s constitution for between $300 to $600 (although sometimes this is done for free); an auditor who certifies the CSO’s initial balance, which costs $30; the publication of the CSO’s articles of incorporation in the Official Journal with the price determined by the number of items contained (30 items cost approximately $85); and the order or decree that grants legal personality, which costs on average $30. Altogether, establishing a CSO may cost between $500 and $800.

Non-adherence to Time Limits. At the time of registration, a written request to be entered into the Registry is submitted for the consideration of the Directorate General of the RAF. It must be accompanied by three copies of the public instrument recording the articles of incorporation and by-laws, the election of the first board of directors or governing board, and other documentation (LAFSFL, Article 65). Should the Registry find that the request contains information that is inadequate, incomplete, formally flawed or in violation of the law, it must notify the organization no more than 90 working days from the date the documentation was received, specifying the errors or violations, and advising the organization to correct them. However, this time period is not always adhered to in practice.

Delayed Registration at Municipal Level. The Municipal Council must issue a decision approving or rejecting the registration of a community association no later than 15 days following submission of the request. The Council shall verify that the by-laws submitted include the provisions required by the Municipal Code and that they do not contravene any law or ordinance. In case of an objection, the applicant will be notified and will be given a period of 15 days from the date of the notification in which to correct it. Once any objections have been addressed, the Council must issue a decision within 15 days from the date of the new request. Should the Council fail to issue a decision within the 15-day time frame, the association’s legal personality will be automatically recognized, as mandated by law, with its by-laws approved and registered accordingly. The Council will be obligated to enter the association’s registration and immediately order the publication of the approval and the by-laws in the Official Gazette. This compulsory registration is not always observed, however, and some municipalities delay registration. In practice, the registration of community associations with the municipality is less than systematic or standardized.

Barriers to Operational Activity

The law does not prohibit unregistered groups from forming and operating; they must only have legal aims. The Criminal Code provides penalties for associations established for the pursuit of an illicit aim.

Barriers to Speech / Advocacy

CSOs are free to criticize the government and advocate for causes that differ from the government’s views. Restrictions on freedom of expression relate to the crimes of defamation, injury and slander, which safeguard other basic rights.

The government created the Economic and Social Council, an advisory body under the Executive Branch made up of key sectors of Salvadoran society such as entrepreneurs, social movements, governments, and academia (universities and think-tanks). This Council examines issues of national relevance such as public security, transparency, the fiscal pact, and social development. According to some observers, while the Council has created opportunities for dialogue on key public policy issues, the process for selecting participants has not been informed by transparent criteria, which has led to criticism of its representativeness. As for the selection of CSOs to the Council, there is no generally established legal procedure and in large measure the decision is left to the discretion of government officials.

Barriers to International Contact

The LAFSL governs the registration and incorporation of foreign CSOs and grants them the same rights as Salvadoran CSOs (Article 44).The operations of foreign entities are approved as long as their purposes are lawful, but they are explicitly prohibited from participating in political activities (LAFSFL, Articles 44 and 47). “Political activities” is not defined in the LAFSL.

Barriers to Resources

CSOs may participate in any legal activity, whether commercial or economic, related to their purposes or aims. The only limitation is that the funds obtained must be used for the institution itself and not the direct enrichment of its members, founders, and administrators (LAFSFL, Article 9). There are no special rules restricting the ability of CSOs to obtain and manage foreign funds.

The law does not establish explicit criteria for certifying public interest status, although it can be inferred that the process includes an examination of the supporting documentation provided with the request. Nonetheless, the law does not specify the criteria that the tax authority will use to certify that any such requirements have been met. This ambiguity leaves room for arbitrary interpretation. The regulations provide no procedure or administrative remedy if a request for certification as a public interest entity is denied, which leaves no other option than protracted and costly legal processes.

Barriers to Assembly

The Constitution states in Article 7 that the "People of El Salvador have the right to freely associate and to assemble peacefully without weapons for any lawful purpose.” However, the Constitution and other laws, cases and regulations do not establish a clear parameter between what is “lawful” and what is not, leaving it to the discretion of the authorities to determine what is a “lawful” purpose.

Advance NotificationAccording to Articles 234, 235 and 236 of the Electoral Code, meetings or demonstrations with “electoral propaganda purposes” require organizers to apply in writing to the Mayor or the City Clerk for the necessary authorization at least one day in advance of the meeting or demonstration. The Mayor shall respond within a period not exceeding 24 hours from the date of submission of the application. If the application is authorized, notice will be sent to the National Civil Police and contending political parties or coalitions. If the application is denied, it must be shown that there was an application prior to that of the applicant’s application; in such a case, another day for the meeting or demonstration shall be given.

These provisions necessarily prohibit counter-demonstrations, since permission for a meeting or demonstration shall be denied where there is an application for a separate meeting or demonstration submitted beforehand.

Notably, however, the advance notification requirement is only applicable to meetings and demonstrations with “electoral propaganda purposes.”

Spontaneous Demonstrations
Despite the notification requirements in the Electoral Code, spontaneous demonstrations are permitted, according to Judgment of 13-VI-1995, Section 4-94 emitted by the Constitutional Court, which states:

Freedom of assembly and public demonstration in its nature and how it is exercised is one of those rights that cannot be subject in its exercise to the prior approval of the state. The exercise of this freedom can only be subject to limitations if it is justified and has previously established laws.

In addition, Section 6. ITEM. 1 of the Constitution states:

Every person is free to express and disseminate their thoughts if they do not disturb public order or harm the morals, honor, or private lives of others. The exercise of this right shall not be subject to prior examination, censorship or security but who by using it break the law, will answer for the offense committed.

In sum, there is a conflict between court judgments and the Constitution on the one hand and the Electoral Code on the other hand with respect to the permissibility of spontaneous demonstrations.Content RestrictionsThere are a number of restrictions on permissible activities during assemblies. According to the Article 232 of the Electoral Code there are the following restrictions:

“No one can paint political propaganda on buildings, public monuments, trees, art, street signs, streets or roads, nor on the walls of private homes without the owner's permission…

The Political Parties, Coalitions, institutions, associations, organizations or any other kind of group may not use in any election propaganda case: symbolism, colors, slogans, marches and pictures or photographs of the candidates of other political parties or coalitions.”

Criminal Penalties and Enforcement
The Special Law Against Acts of Terrorism contains vague language that may be subject to arbitrary enforcement. For example, Article 6 of the Special Law states that, "The person who participates individually or collectively in the occupation of cities, villages, buildings or private facilities, public places, diplomatic, or any places for religious cult, in whole or in part, using for this weapons, explosives or similar articles, thereby affecting the normal development of the functions or activities of the inhabitants, staff or users, shall be punished with imprisonment of 25-30 years."

Other vague provisions in this law have been used to deter or punish individuals participating in assemblies. In 2007, for example, terrorism charges including 10-15 year prison sentences were brought under this law against protesters who allegedly blocked roads and threw stones.

News and Additional Resources

While we aim to maintain information that is as current as possible, we realize that situations can rapidly change. If you are aware of any additional information or inaccuracies on this page, please keep us informed; write to ICNL at ngomonitor@icnl.org.

Events

Elections for the legislative branch and City Council (mayoral electionsn) were held on March 4, 2018.

New changes to the Electoral Code (May 2016) (Spanish)
The electoral’s commission and constitutional reforms of the Legislative Assembly today agreed unanimously to make a series of reforms to the Electoral Code.

Extraordinary Security Measures Approved (April 2016) (Spanish)
Members of the Legislative Assembly approved the extraordinary security measures. This initiative may be introduce for a year. Extraordinary security measures are compound for several instructions as move prisoner to a maximum security’s prison.

Government and civil society launch Alliance for Open Government (January 2016) (Spanish)
The Government of El Salvador and civil society organizations launched the Alliance for Open Government Observatory, a space for dialogue, feedback, monitoring and evaluation of compliance with internationally agreed commitments in the Action Plan 2014-2016 of the Alliance for Open Government (AGA). The launch was led for the Secretary of Citizen Participation, Transparency and Anticorruption, Marcos Rodriguez; vice-minister of Health Policy, Eduardo Espinoza; the chairman of Centro de Capacitación y Promoción de la Democracia (CECADE), Gustavo Amaya, and other representatives of the entities that make up the observatory.

New contributions in the process of electoral reforms (November 2015) (Spanish)
The Commission on Electoral and Constitutional Reform in closed doors greeted the judges of the Supreme Electoral Tribunal (TSE), who released the results of an internal and external evaluation of past elections, providing contributions towards the electoral reform of the next elections 2018-2019.

Assembly approves law on electronic signatures (October 2015) (Spanish)
With 76 votes of the representatives of all parliamentary fractions, the Law on Electronic Signatures was approved. It will allow the signature to be done manually with the same value as if it is issued via electronic means. To achieve this, Salvadorans, who so wish, must certify their signature through companies specializing in this.

Una ley contra los delitos informáticos que respete la libertad de expresión (September 2015) (Spanish)The development of information technology has resulted in the creation of spaces for business and also for the crime, but the legal system has lagged behind regulating them. The proliferation of computer crime or cybercrime is undeniable and has reached our borders. El Salvador, not having a definition of cyber crime, is in a situation of legal uncertainty.

CSO director victim of threats (May 2015)
Roberto Rubio, director of the Fundación Nacional para el Desarrollo (Funde), denounced that he has become a victim of personal attacks through blogs and cyber structures that work from the Presidential House. Rubio questioned the Secretary of Transparency and Anti-corruption, Marcos Rodríguez, about the possible existence of a campaign office that executes a "dirty war" from Presidential House.

Organization promotes more transparency (May 2015)
The Organization of the Consortium for Transparency and Anti-corruption expressed its rejection and concern about anonymous acts of systematic harassment against those who promote transparency and criticize the State's opacity.

Private media called to recognize international standards of freedom of expression (November 2014)
The new Rapporteur for Freedom of Expression of the Organization of American States (OAS), Edison Lanza, made his first formal visit to Latin America in order to meet different actors that work on freedom of expression and access to information. Lanza came to El Salvador and met vibrant civil society representatives and perceived that the state has good responsiveness to discussions with civil society.

President receives Draft Law of Citizen Participation in Public Management (September 2014)
In September 2014, President Ceren received the draft Law of Citizen Participation in Public Management, which aims to institutionalize participation in the design, implementation and evaluation of public policies and empower citizens through mechanisms for consultation and dialogue. The Secretary of Citizen Participation, Transparency and Anticorruption, Marcos Rodriguez, explained that the Law seeks to sensitize the public about the importance of their voice and actions for the future of the country.